Dental Practice and Montana Law: Topics of Interest

The following material is provided by MDA as guidance on the topics presented. Although the material refers to state statutes and administrative rules, it is not intended as legal advice. The dentist should consult a personal attorney concerning any specific legal problem or issue.

Antitrust Issues

As third-party payors exert increasing pressure on health care professionals to adopt measures for the purported purpose of containing medical costs, it becomes a natural reaction for independently practicing dentists to join together to form a collective response to these pressures. But dentists must be mindful of the civil and criminal implications of any collective response to an invitation to join third party payor networks.

Health care professionals are subject to federal and state antitrust laws. Collective conduct by independently practicing dentists may result in illegal price-fixing or group boycott agreements under these laws. Dentists practicing independently are considered by the law to be competitors because they are individuals providing the same service to patients. And antitrust laws prohibit certain types of joint activity among competitors.

The antitrust law most relevant to dentists is Section 1 of the Sherman Act. It prohibits any concerted action that unreasonably restrains competition. A written agreement among dentists is not necessary to show concerted action. Collective activity, including inferred agreements among competitors, can result in illegal agreements. As competitors, dentists also must avoid discussion of prices, particularly proposed future prices. If they don't, they risk charges of an unlawful price-fixing conspiracy.

For example, an agreement to fix prices could be inferred from meetings at which dentist discussed fees if afterwards the dentists began charging the same fees. And it could be considered an unlawful boycott if a group of dentists from a district dental society or other group of dentists agreed among themselves to refuse to deal with a certain third party payor. In response to an invitation to join a payor's provider network, a dentist may independently decide whether to contract with the third party payor. Also, fully integrated group practices and independent practice associations are considered to be single entities. The antitrust laws do not prohibit conduct by an individual dentist or dental group practice, including a refusal to participate in a third party payor's program. But a dentist who joins with other independently practicing dentists to make this decision may be charged with illegal restraint of competition.

It also may be considered unlawful for a group of dentists to collectively threaten to cancel their participation agreements with third-party payors unless the payors agreed to more satisfactory terms, including higher reimbursement levels. These group activities are viewed as unlawful attempts to fix fees.

In one antitrust case, a group of dentists were convicted of conspiring to fix prices for dental services provided to members of a prepaid dental plan. The dentists met together and agreed to persuade the plan to raise co-payment fees and then took steps to carry out the agreement.

The Federal Trade Commission, which can bring civil antitrust cases, has rejected the defense of a group of health care providers that its collective activities were motivated by concern for patients' welfare. Dentists should not assume that an organized activity is lawful merely because they believe it serves the public's interest.

Conduct will be considered an unreasonable restraint of trade if on balance it is anticompetitive. Two standards are used to judge the competitive nature of questionable conduct. Most conduct is examined under the "rule of reason" which requires that all relevant facts be weighed and examined to determine the procompetitive and anticompetitive effects of the activity.

However, some kinds on conduct are considered to always be anticompeti-tive. These types of conduct are considered "per se" illegal, regardless of their purpose or actual effect on competition. A price-fixing agreement or understanding would be illegal per se. Another type of agreement that may be considered per se unlawful is a group boycott.

Two exceptions to the antitrust laws are of particular importance to dentists. The first arises out of the constitutional right to petition the government. The First Amendment of the United States Constitution protects the right to petition any branch of the government. Thus dentists and dental societies may advocate for governmental action even if the action would harm competition. The second exception, state action, provides that acts of the government itself are not subject to the antitrust laws. Private parties may be protected under this exception if their acts were clearly authorized and supervised by the state.

A violation of the antitrust laws can result in severe penalties, including triple damages in a civil lawsuit. A violation may also result in criminal penalties against health care providers who violate the antitrust laws. If you have questions about antitrust issues, contact the MDA staff or legal counsel.

Patient Access to Records

Montana's Uniform Health Care Information Act defines a dentist's duty to release information and to make information available to the patient. Generally, a dentist may not disclose health care information about a patient to any other person without the patient's written authorization. But the act provides a number of specific exceptions to this general rule.

Disclosure upon patient's request. A dentist must release health care information upon the patient's request. A valid authorization must:

be in writing, dated and signed by the patient;

identify the nature of the information to be disclosed;

identify the person to whom the information is to be disclosed.

Disclosure without the patient's permission based on need to know. A dentist may disclose information without the patient's permission to a person providing health care to the patient. And a dentist may release the information to a third-party health care payor (insurer) and to someone who is conducting peer review. The dentist may release the information if the dentist reasonably believes the person will:

not use or disclose the health care information for any other purpose; and

take appropriate steps to protect the health care information.

A dentist also may release information to another health care provider who previously provided health care to the patient, to the extent necessary to provide health care to the patient, and to immediate family members of the patient or any other individual with whom the patient is known to have a close personal relationship, unless the patient has instructed the dentist not to make the disclosure.

A dentist may release the information to another dentist who is the successor in interest to the dentist maintaining the information. And to any contact who has been identified by the subject of an HIV-related test as a past/present sexual partner, needle sharer, or someone otherwise exposed to the virus, if the dentist reasonably believes that disclosure will avoid or minimize an imminent danger to the health or safety of the contact or another person.

A dentist may also release health care information if the disclosure is to public health authorities, to the extent required to protect public health; to federal, state or local law enforcement agency to the extent required by law; to a law enforcement officer about the general physical condition of a patient being treated in a health care facility if the patient was injured on a public roadway or was injured by the possible criminal act of another; under compulsory court process; and to mortuary personnel who may be exposed to infectious disease at the time of transfer of a dead body.

Disclosure by legal process. Information may be made available by compulsory legal process if, among other matters:

the patient has consented in writing;

the patient has waived the right to claim confidentiality;

the patient is a party to the legal proceeding and has placed his physical or mental condition in issue; or

the health care information is for use in any law enforcement proceeding or investigation in which a health care provider is the subject or a party.

Patient authorization to dentist for disclosure -- denial of patient access -- revocation. A patient may authorize a dentist to disclose the patient's health care information. The dentist must honor the authorization and if requested, provide a copy of the recorded health care information unless the dentist denies the patient access because the dentist reasonably concludes that, among other matters, knowledge would be injurious to the health of the patient or the information was compiled and used solely for litigation or peer review purposes. The Uniform Health Care Information Act does not permit denial of access to health care information on the grounds that the patient has not paid the dentist's charges for services.

Under the Uniform Health Care Information Act, a dentist may charge a reasonable fee, not to exceed the actual cost of providing the health care information, and is not required to honor the authorization until the fee is paid.

A patient may revoke a disclosure authorization at any time unless authorization is necessary to effectuate payments for dental care that has been provided. A dentist must retain each revocation from the patient.

Patient authorization -- retention -- effective period. Except for authorizations to provide information to third-party health care payors, an authorization may not permit the release of information relating to health care that the patient receives more than 6 months after the authorization was signed.

An authorization becomes invalid after the expiration date contained in the authorization, which may not exceed 30 months. If the authorization does not contain an expiration date, the authorization is effective for only 6 months. After that time, the patient must provide a new authorization. A dentist must keep a record of each written authorization. A dentist must also keep a record of each person who has received or examined the information within the past 3 years. The disclosure record must include the name, address, and institutional affiliation of the person who received or examined the information. The record must also describe the information disclosed.

Content and dissemination of notice. A dentist is required to draft a notice to a patient describing how the patient may get his or her records. The notice must be posted in a conspicuous place in the dentist's office.

It should state in substantially the following form: "We keep a record of the health care services we provide for you. You may ask us to see and copy that record. You may also ask us to correct that record. We will not disclose your record to others unless you direct us to do so or unless the law authorizes or compels us to do so. You may see your record or get more information about it at [dentist's office]."

Request for examination, copying, or amendment. If a dentist receives a written request from a patient to examine or copy the patient's health care records, the dentist must make the information available to the patient during regular business hours within 10 days of receiving the request. Under the Uniform Health Care Information Act, the dentist may charge a reasonable fee not to exceed the actual cost for providing the information and is not required to permit examination or copying until the fee is paid.

Finally, if the patient asks to amend or correct a health care record, the dentist must respond within 10 days by allowing the amendment or correction or advising the patient in writing of the reason for refusing to make the amendment or correction.

Maintenance and Retention Of Records

Dentists frequently ask, "How long do I need to keep my patient records?" The following is meant to provide some guidance on this question, However, it is not meant to be legal advice. The dentist should consult a personal attorney for such advice.

Montana's Uniform Health Care Information Act provides that a dentist must retain health records for at least one year following the receipt of an authorization from the patient to disclose the information, a request from the patient to examine and copy the patient's records, or a request for correction or amendment of the information.

Montana administrative rule ARM § 46.12.308 provides that with regard to Medicaid patients, a medical provider must maintain records which fully disclose the extent and nature of the services provided to individuals receiving assistance under the Medicaid program. The records must support the fee charged or payment sought for services. The records must be retained for a period of at least three years from the date on which the service was rendered.

The rule also provides that the Department of Public Health and Human Services is entitled to have access to all Medicaid recipient records maintained and retained by the health care provider regardless of the provider's continued participation in the program. If the medical practice changes ownership, the original owner of the practice must retain all required records unless an alternative method of providing for the retention of records has been established in writing and approved by the department.

The extent to which a dentist may choose to retain a patient's medical records beyond these required periods is an issue of individual judgment. Again, the dentist should seek legal advice in a specific instance.

For example, a dentist may choose to retain the records longer in view of the statute of limitations for the filing of a medical malpractice civil action. Section 27-2-205, MCA, provides that a tort or contract action for injury or death filed against a dentist based upon alleged professional negligence must be commenced within three years after the date of injury or within three years after the patient discovers or through the use of reasonable diligence should have discovered the injury. However, in no case may the lawsuit be filed later than five years from the date of the injury. This time limitation is extended during any period in which there has been a failure to disclose to the patient any act, error, or omission on which the action is based if known to the defendant dentist or which through the use of reasonable diligence would have been known to the dentist.

If the patient is a minor who was under the age of four on the date of the injury, the period of limitation begins to run when the child reaches the age of eight or dies, whichever occurs first, and the time for the commencement of the civil action is tolled for any period the child does not reside with a parent or guardian. Another circumstance which will extend the period limitation involves a seriously mentally ill person. In this case, MCA § 27-2-401 provides that the time of disability is not part of the time limit for beginning an action. However, the time limit cannot be extended more than five years by the disability of serious mental illness.

ARM § 8.16.703 is another administrative rule that relates to patient records. The rule requires dentists to safeguard the confidentiality of patient records. They must maintain patient records in a manner consistent with the protection of the welfare of the patient. Upon request of a patient or another dental practitioner, a dentist must provide any information that will be beneficial for the future treatment of the patient. This language is also contained in Code Section 1-B of the ADA Principles of Ethics and Code of Professional Conduct.

Health Care Provider Lien for Services

Montana law allows a dentist to file a lien against a patient's insurance payments or proceeds for the value of services provided. To claim a lien, the dentist must give written notice to the insurer. The notice must

state that a lien is being claimed;

describe the nature of the dental services;

give the name of the patient;

state the date services were rendered.

MCA § 71-3-1117 provides that if the insurer, after receiving notice of the lien from the dentist, pays the patient who does not then pay the dentist, the insurer remains liable to the dentist for the amount of the lien.

How to Report Suspected Child Abuse

To report suspected child abuse, call 1-800-332-6100.The ADA Principles of Ethics and Code of Professional Conduct state a dentist's responsibility in cases of suspected child abuse. The relevant provision of the Code reads:

1-F. CHILD ABUSE. Dentists shall be obligated to become familiar with the perioral signs of child abuse and to report suspected cases to the proper authorities consistent with state laws.

In addition, Montana law requires a dentist to report cases of child abuse. MCA § 41-3-201 states than when a dentist, as a result of information received in the dentist's professional capacity, knows or has reasonable cause to suspect that a child is abused, the dentist must promptly report the matter to the Department of Public Health and Human Services or its local office. A dentist may not refuse to make a report on the grounds of dentist-patient privilege.

A dentist is immune from civil or criminal liability for making a report of child abuse or suspected abuse unless the dentist was grossly negligent or acted in bad faith or with some malicious purpose.

When the department receives a report that a child has been abused or that abuse is suspected, a state representative will conduct an investigation into the home of the child involved. A dentist who has made a report regarding abuse or suspected abuse should be prepared to answer questions concerning the dentist's specific concerns and to provide the name, address, sex, and date of birth of the reported child and the name, address, and telephone number of the adult who has custody of the child.

Discharge of Patient

In what circumstances may a dentist terminate services to a patient of record? The decision to terminate services should take into account these considerations.

The ADA Principles of Ethics and Code of Professional Conduct state a dentist's responsibility regarding service to the public and quality of care. On the issue of patient selection the Code states:

1-A. PATIENT SELECTION. While dentists, in serving the public, may exercise reasonable discretion in selecting patients for their practices, dentists shall not refuse to accept patients into their practice or deny dental service to patients because of the patient's race, creed, color, sex, or national origin.

A dentist may terminate services to a patient of record so long as termination does not endanger the patient's health and is not discriminatory.

The dentist should also be mindful of the ADA Advisory Opinion which states that a dentist has the ethical obligation on request of either the patient or the patient's new dentist to furnish, either gratuitously or for nominal cost, such dental records or copies or summaries of them, including dental x-rays or copies of them, as will be beneficial for the future treatment of that patient. This obligation exists whether or not the patient's account is paid in full.